A correspondent from Queensland wrote:
I read your post about the liability being found against the NSW Ambulance [see “Liability for motor vehicle accident – NSW ambulance on urgent duty” (July 6, 2015)] at 5:43 pm, and it reminded me of a matter a colleague told me about.
There was a minor traffic crash between a Police Vehicle and a civilian car, where the police vehicle has commenced a u-turn, and the civilian vehicle has hit the side of the police vehicle at low speed, leaving a dent.
The driver of the police vehicle has stated they were doing the u-turn to pull over another vehicle to administer a RBT, therefore providing them protection under the Transport Operations (Road Use Management) Act 1995 (Qld) s 144 (I assume that this is the section that applied as the Transport Operations (Road Use Management—Road Rules) Regulation 2009 are a regulation under this Act).
The officer that was the driver was then issued a traffic infringement by the QPS, apparently following a magistrate’s court decision that the defence did not apply in the case of a potential offender.
My question is are you aware of the details of this predecessor case, and would the implications be that the Police effectively are unable to intercept any vehicles unless they are seen committing an offence? Would this then remove the random breath testing power and return to the probable cause requirement?
Section 144 of the Transport Operations (Road Use Management) Act 1995 (Qld) says:
Provisions of this Act about offences (other than section 79 and 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.
Sections 79 and 80 relate to driving and alcohol and are not relevant. There are many provisions in this Act the create offences these tend to be more significant offences rather than the daily driving matters. The Australian Road rules are incorporated into Queensland wall by the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). Rule 38 says:
A driver making a U-turn must give way to all vehicles and pedestrians.
Rule 305 as the traditional and familiar exemption for police. It says:
(1) A provision of this regulation does not apply to the driver of a police vehicle if—
(a) in the circumstances—
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the provision should not apply; and
(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.
(2) Subsection (1)(b) does not apply to the driver if, in the circumstances, it is reasonable—
(a) not to display the light or sound the alarm; or
(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.
Given the police were doing a U-turn in order to perform random breath test this hard to believe that they were displaying “a blue or red flashing light or sounding an alarm”. I can understand why a magistrate would hold that it is not reasonable for rule 305 to apply when police are not seeking to arrest an offender or otherwise engage in urgent duty. A genuine random breath test when there is no cause to suspect that the driver is affected by alcohol would not seem to warrant the application of rule 305.
As to the assumption that the exemption in section 144 applies, this cannot be the case. If it was there would be no work for rule 305 to do and give police a blanket exemption from all the road rules in all circumstances. That is clearly not Parliament’s intention. Section 144 will apply to offences that are set out in the Act whereas rule 305 will apply to offences set out in the regulations.
The implication is not that police “are unable to intercept any vehicles unless they are seen committing an offence” rather they are not allowed to unreasonably breach the Road rules in order to stop a driver for the purposes of random breath testing. The power to require a person to undergo a breath test is found in the Transport Operations (Road Use Management) Act 1995 (Qld) s 80. The power to require a person to stop the vehicle in order to undergo a breath test is found in the Police Powers and Responsibilities Act 2000 (Qld) s 60.
Police do often have to breach the road rules to set up random breath testing stations but they may close a lane, park their vehicles in what would otherwise be illegal situations and do other things. It should be noted that rule 305 requires them to take reasonable care and that the relevant provision should not apply in circumstances. It is almost axiomatic that if there is an accident the driver was not taking reasonable care. It is also open for a magistrate find that it is not reasonable to exempt a police vehicle from the rule requiring to give way when doing a U-turn’s but at the same time allow that the rule against stopping or parking on a motorway should not apply while performing RBT.
I don’t think too much to be read into this. A police officer who does a U-turn in order to conduct a random breath test and is involved in a collision can’t quite reasonably expect to receive a Traffic Infringement Notice. Equally a police officer who does a U-turn in order to conduct a random breath test but was not involved in a collision could quite reasonably expect not to receive a Traffic Infringement Notice. A decision of a magistrate does not create a binding precedent and without knowing the earlier case an assertion by magistrate that will create five did not provide an exemption in a particular case would be limited to the facts of that case. Even so I can understand why a magistrate would find that it was not reasonable for rule 305 to apply with the driver of a police vehicle exposed others to danger when not seeking to apprehend an offender. If that did not apply police to do a U-turn at any point just because it was more convenient than proceeding by some other route.
Police are able to proceed with random breath testing but must take reasonable care when doing so and if their actions are in breach of the road rules they must take reasonable care when doing so. As with all emergency workers the ultimate decision of whether or not it is reasonable to exempt the police from particular road rule lies with the court.